Busby, Edward Lee Jr.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,747-02

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EX PARTE EDWARD LEE BUSBY, JR.

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

MOTION FOR CONTEMPT IN CAUSE NO. C-2-008387-0920589-B

IN CRIMINAL DISTRICT COURT TWO TARRANT COUNTY

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Per curiam.

O R D E R

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. ⁽¹⁾  

David Dow and Melissa Azadeh are representing applicant in this subsequent application, which was filed in the convicting court on October 1, 2012. On October 11, 2012, the State filed a Motion for Contempt in the convicting court in response to this application. Without addressing the Motion for Contempt and the responsive pleadings that followed, the convicting court properly forwarded the subsequent application and the record to this Court in compliance with Article 11.071, Section 5(b)(1).

Although the subsequent application is properly before us, it appears that the parties intended for the Motion for Contempt and responsive pleadings to be considered in the first instance by the convicting court. Further, it appears that controverted, previously unresolved factual issues material to the merits of this Motion exist. See Art. 1.052; Art. 11.14(5); see also Ex parte Gaither, 387 S.W.3d 643 (Tex. Crim. App. 2012).

The trial court, as the original finder of fact, is in a better position than this Court to receive evidence and to resolve any fact issues with respect to the Motion for Contempt and responsive pleadings. Therefore we return these proceedings to the trial court to rule on the Motion for Contempt.

IT IS SO ORDERED THIS THE 6^th DAY OF MARCH, 2013.

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1. Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.